Fleming v. Phoenix Assur. Co.
| Decision Date | 19 April 1930 |
| Docket Number | No. 5605.,5605. |
| Citation | 40 F.2d 38 |
| Parties | FLEMING v. PHŒNIX ASSUR. CO. et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. O. Mulkey, of Geneva, Ala., and J. C. Yarbrough, of Enterprise, Ala., for appellant.
B. G. Farmer and A. K. Merrill, both of Dothan, Ala. (Farmer, Merrill & Farmer, of Dothan, Ala., on the brief), for appellees.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
The Phœnix Assurance Company issued a policy of fire insurance to R. O. Fleming, covering a stock of merchandise owned by him and contained in a store at Enterprise, Ala. The policy covered loss up to $4,000. Seven other insurance companies issued similar policies on the same goods, the whole aggregating insurance of $26,000. The property was destroyed by fire on July 15, 1928, except as to salvage amounting to about $10,000. The insurance companies denied liability on the ground that Fleming had violated the iron safe clause, contained in all the policies, by failing to keep safe and produce books and inventories, and had voided the policies by executing chattel mortgages on the stock of goods. All the policies contained the clause that in case of loss each insurance company shall pay only the pro rata which its own maximum of loss bears to the total amount of loss. On October 15, 1928, Fleming filed separate suits against the insurance companies in the circuit court of Coffee county, Ala., at Enterprise. Five of the suits, each involving more than $3,000, were removed to the federal court, and three of them, each involving less than the jurisdictional amount, were left pending in the state court. Some fifteen creditors of Fleming filed suits against him in the state courts for various amounts ranging from $150 to $900, and issued attachment and garnishment proceedings against each of the insurance companies. All the suits are pending, and liability of the insurance companies is undetermined.
Alleging the facts substantially as above set out, the Phœnix Assurance Company filed a bill making Fleming, the other insurance companies, and the attaching creditors parties, and prayed for judgment holding itself and the other insurance companies not liable on any of the policies and, in the alternative, that the court determine the amount due Fleming and the pro rata to be contributed by the insurance companies, and determine the rights of Fleming and the attaching creditors to the fund. The bill shows the necessary diversity of citizenship and sufficient jurisdictional amount.
Fleming moved to dismiss the bill as being without equity on the ground the plaintiff has a plain and adequate remedy at law, and further set up that the District Court was without power to enjoin the prosecution of the suits in the state courts.
The other insurance companies filed a joint answer admitting all the allegations of the bill. The garnisheeing creditors also filed a joint answer, raised no question as to the jurisdiction of the court, and admitted practically all the allegations of the bill except those upon which the plaintiff relied for relief as against Fleming, which were denied.
After a hearing, the District Court overruled the motion to dismiss the bill and issued a...
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Pan American Fire & Casualty Company v. Revere, Civ. A. No. 9952.
...Federal Practice, Para. 22.07(1), p. 3020. 17 With less ado, the Fifth Circuit Court of Appeals had already so held in Fleming v. Phoenix Assur. Co., 5 Cir., 40 F. 2d 38. Also worthy of note, though dealing with strict interpleaders, are Judge Foster's opinion, quoted with approval by the S......
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...plaintiff, though interested in the controversy, has successfully maintained a bill in the nature of an interpleader. Fleming v. Phoenix Assur. Co., 5 Cir., 40 F.2d 38, certiorari denied 282 U.S. 869, 51 S.Ct. 76, 75 L.Ed. 768; Provident Sav. Life Assur. Soc. v. Loeb, C.C., 115 F. 357, affi......
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...190 F.2d 334, disapproving the holding in Credit Bureau of San Diego v. Petrasich, 9 Cir., 1938, 97 F.2d 65; compare Fleming v. Phoenix Assur. Co., 5 Cir., 1930, 40 F.2d 38; see also, International Union of Elec. Radio & Mach. Workers, C.I.O. v. United Electrical R. & M. Workers, 6 Cir., 19......
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Standard Surety & Casualty Co. v. Baker
...v. Sentell, 153 U.S. 465, 14 S.Ct. 898, 38 L.Ed. 785; Sherman Nat. Bank v. Shubert Theatrical Co., 2 Cir., 247 F. 256; Fleming v. Phœnix Assur. Co., 5 Cir., 40 F.2d 38. It is, however, contended that even though such a bill might be maintained notwithstanding plaintiff's interest, yet it wi......